Defendant, James Lee Jefferson, was convicted after a bench trial of residential burglary and sentenced to 12 years' imprisonment. He argues on appeal that his guilt was not proven beyond a reasonable doubt because there were significant discrepancies in the witness' identification and that there was stipulated evidence that defendant's shoe size was larger than that of the shoe prints found outside the burglarized residence. Defendant also argues that he was denied a fair trial because the trial court did not give weight to the stipulation concerning his shoe size.

Richard M. Sandrock testified that when he returned from a trip to his home at 723 Forest Avenue in Wilmette, he discovered that television and stereo equipment was missing.

Lisa Hinchcliff testified that about 2 a.m. on December 29, 1985, she returned home to 727 Forest Avenue in Wilmette. She noticed that the lights were on next door at the Sandrock home, and she went to the window to look more closely. From 40 feet away, she clearly saw two black men in the kitchen and the family room of the Sandrock home. One of the men was trying to pick up a television in the family room, and the other man was holding another television. One man, whom she later identified as defendant, was approximately 5 feet 10 inches tall, was big and husky, wore a green-hooded sweat shirt and a jacket, had big sideburns and was not clean shaven. The other man was taller, thinner, had a darker complexion, was clean shaven and was wearing nondescript clothing. She watched from her room for two minutes and then went to the kitchen to call the police. While she was on the telephone with the police, she looked through the kitchen window at the men. Most of the time she only saw defendant's profile but she also saw the front of his face various times. She observed the burglars for a total of four minutes.

At the police station, Hinchcliff gave a detailed description of the men. She said that defendant had sideburns that covered most of his cheeks and that the rest of his face was not clean shaven with some straggly chin hair. She also said that he was relatively light complected and that the other man was very dark complected. She did not tell the police that the burglar had a moustache or full beard, which she did not see. She met with an officer to make up a composite of the man identified later as defendant. The police showed her an array of seven or eight photographs, and she pointed out one that looked like the burglar in the family room except his facial hair differed. She was not sure that the burglar had as much of a beard as depicted in the photograph and felt that his sideburns were a little fuller than depicted. The color of the skin in the photograph also appeared darker than what she had observed. She requested to see more photographs and viewed hundreds in trays the next day. She did not see either of the two burglars in those photographs but then reviewed a book of photographs in which she saw a photograph of defendant. This photograph more closely resembled the burglar than the earlier photograph she had tentatively identified because the sideburns appeared fuller and longer, the skin appeared lighter, and the hair was sticking up.

On January 3, 1986, Hinchcliff picked defendant out of a lineup. His facial hair was less grown in around the side of the jaw and chin and less full than the sideburns, but defendant had a full beard and moustache. Hinchcliff had lived in Wilmette, which had few black residents, since she was in second grade. But she stated in a response to a question whether she saw black people often that she frequently traveled downtown.

Wilmette police officer Kenneth Rydz testified that Hinchcliff told him upon his making a composite of one of the suspects that he had pronounced sideburns and that the hair on the chin and lip looked scruffy. However, she was not sure whether the chin was scruffy, although she was positive about the sideburns. She never said that the burglar had a beard or moustache. Rydz asked defendant's family for clothing for defendant to wear in the lineup, and they brought him gym shoes, socks and a sweater.

Julia Rochelle Jefferson, defendant's wife, testified that on December 28, defendant came home at 8:30 p.m. and remained there all that night.

A stipulation was entered that defendant was 6 feet 1 inch tall and weighed 210 pounds. Another stipulation was entered which stated that: (1) a police officer observed two separate sets of shoe prints at the burglarized home, both of which proceeded from the alley in the rear of the residence to the kitchen window and then away from the back door to the alley; (2) the officer concluded that the point of entry was the kitchen window and that the burglars exited through the back door; (3) the officer measured the shoe prints and one measured nine inches in length and three inches in width, and another measured 9 1/2 inches in length and 3 1/2 inches in width; (4) the shoe of defendant measured over 12 inches in length; (5) the officer concluded that the shoe of defendant did not make the two measured footprints; (6) the officer was unable to see the entire front of the second shoe print; (7) the officer concluded that the two shoe prints may or may not have been the same.

The trial court found that the witness' identifications of defendant were consistent and that her recollections were good. The trial court also referred to the gym shoes supplied by defendant's family and noted that the shoes may or may not have measured up to the impressions that were found on the premises. Defendant was found guilty of residential burglary, his motion for a new trial was denied, and he was sentenced to 12 years' imprisonment.

Defendant argues that his guilt was not proven beyond a reasonable doubt because of exculpatory shoe print evidence and because of the following discrepancies in the identification of defendant by the eyewitness: (1) defendant was three inches taller than she had described; (2) defendant's complexion was not light as she had described; and (3) defendant had a beard and moustache although the witness had described him as having big sideburns and not being clean shaven in other areas. Defendant also relies upon the fact that Hinchcliff grew up in a white suburb. Defendant also argues that the shoe prints at the scene of the crime could not have been made by him according to the police officer who made the measurements.

A vague, doubtful, or uncertain identification will not support a conviction. (People v. Slim (1989), 127 Ill. 2d 302, 537 N.E.2d 317.) Hinchcliff's identification of defendant was positive and did not waver. She had an adequate time to view defendant and was very conscientious about viewing police photographs to make certain that she identified the correct man as the burglar. The testimony of a single credible witness with ample opportunity to make a positive identification is sufficient evidence to convict. (People v. Gomez (1982), 107 Ill. App. 3d 378, 381, 437 N.E.2d 797.) While she did not identify the burglar as having a beard, she identified him as having sideburns that covered most of his cheeks. The discrepancies were not significant enough to find a reasonable doubt of defendant's guilt.

The shoe print evidence did not exculpate defendant. The trial court could have found that one of the sets of shoe prints belonged to defendant. The stipulation was that the officer found the shoe prints to measure 9 and 9 1/2 inches in length. However, because the photographs of the shoe prints indicated a possible length of greater than nine inches and because the entire shoe in at least one set did not make an impression in the snow, the actual shoe length could have been greater than nine inches. The officer concluded that he could not see the entire front of the second shoe print, so the Conclusion that the shoe length could have been longer than nine inches is not at variance with the officer's Conclusion and is consistent with the possibility that defendant made the shoe print. The officer also concluded that defendant's shoe did not make the two measured shoe prints. However, the trial court was not required to accept the officer's Conclusion as authoritative. Furthermore, it could have been concluded that even if defendant's shoe prints were not found outside, he still could have burglarized the residence because there was no showing that the shoe prints were made by the burglars.

The judgment of the circuit court is affirmed.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. I THE PREFATORY GROUNDS FOR REVERSAL

The defendant's burglary conviction and 12 years' imprisonment sentence should be reversed because:

(1) The circumstances of the witness' observation of the burglary offenders were not conducive to an accurate or reliable identification;

(2) the description of the burglary offender that the witness gave the police immediately after she observed him was not a description of the defendant, and more importantly, the description was diametrically and glaringly contrary to the defendant's description;

(3) the defendant's conviction is based solely on an uncertain, unconvincing, doubtful, inaccurate, single, uncorroborated identification;

(4) the trial court not only completely ignored and rejected the uncontradicted evidence that the burglars' footprints in the snow to and from the burglarized premises could not possibly have been made by the defendant, but, also, the trial court created its own facts regarding the footprints, which were not in evidence, and then improperly relied on its evidentially unsupported created facts in finding the defendant guilty; and

(5) not only does the State's evidence fail to prove the defendant's guilt beyond a reasonable doubt, but, also, the State's evidence proves beyond a reasonable doubt that it was not the defendant who committed the burglary offense.

For these foregoing reasons, the defendant's conviction, sentence and affirmances thereof constitute a grave miscarriage of Justice. The judgment and sentence should therefore be reversed. II THE LEGAL STANDARDS GOVERNING APPELLATE REVIEW

In reversing convictions predicated solely on single uncorroborated identification testimony, the following eloquently pronounced guiding principles of the Supreme Court in United States v. Wade (1967), 388 U.S. 218, 228-29, 18 L. Ed. 2d 1149, 1158-59, 87 S. Ct. 1926, 1933, are applicable: "[Identification] evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: 'What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials. These instances are recent -- not due to the brutalities of ancient criminal procedure.' The Case of Sacco and Vanzetti 30 (1927). A major factor contributing to the high incidence of miscarriage of Justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '[the] influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of Justice than any other single factor -- perhaps it is responsible for more such errors than all factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest. Moreover, '[it] is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial.'" (Emphasis added.)

Many people, even in serene atmospheres, have been approached by a total stranger and mistakenly taken for someone else, and upon recognizing the error, the stranger is prompted to say, "Oh, I'm sorry, I thought you were someone else." And just as many people have themselves made that same mistake. People frequently say and hear, "Oh, he looks like someone else I know." The difficulty and often the inability to accurately describe a past seen stranger and to later correctly identify that stranger are problematic and uncertain realities. Erroneous and mistaken identifications, however honest and well intentioned they may be, plague the Justice system. Criminal convictions predicated solely on uncorroborated identification testimony cause justified consternation. Indeed they should. Such convictions inherently fail to unequivocally instill a completely satisfying certainty of Justice.

Faulty and inaccurate identifications continue to cause unjust convictions and imprisonment of innocent people and continue to prompt valid concerns because of such inJustices. Of equal concern, certainly, is the fact that such erroneous convictions do not rid the community of or protect the community from the onus of the real unapprehended culprits, who continue to wreak havoc on their victims. Simply convicting and imprisoning just anyone for the commission of a crime, as was obviously done in the case at bar, does not redress the victim's grievance or safeguard the community.

In a bench trial, of course it is for the trial Judge to determine the credibility of a witness' identification testimony, to weigh the evidence and to draw reasonable inferences therefrom. (People v. Berland (1978), 74 Ill. 2d 286, 305-06; People v. Mendoza (1978), 62 Ill. App. 3d 609, 615, 378 N.E.2d 380.) On review, however, the trial court's finding and judgment will be set aside if the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt of the defendant's guilt. (People v. Slim (1989), 127 Ill. 2d 302; People v. Johnson (1986), 114 Ill. 2d 170, 190; People v. Collins (1985), 106 Ill. 2d 237, 261; People v. Sakalas (1980), 85 Ill. App. 3d 59, 68.) Clearly, the proof in the case at bar is so unsatisfactory, improbable and implausible that it justifies a reasonable doubt of the defendant's guilt.

In affirming the appellate court's reversal of the defendant's armed robbery, home invasion and unlawful restraint conviction because the identification evidence was unsatisfactory in People v. Ash (1984), 102 Ill. 2d 485, 492-94, the supreme court stated: "A conviction cannot be deemed to be sustained beyond reasonable doubt by the evidence if identification of the accused was vague and doubtful," and that, "An issue here is whether the evidence was sufficient to show Ash guilty beyond a reasonable doubt. Quoting from People v. Jordan (1954), 4 Ill. 2d 155, 156, we recently stated that 'it is our duty, where a verdict of guilty is returned by a jury . . . not only to carefully consider the evidence but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and is not sufficient to create an abiding conviction that he is guilty of the crime charged.'"

Our supreme court recently pointed out in Slim that in assessing identification testimony Illinois courts have used the criteria pronounced by the Supreme Court of the United States in Neil v. Biggers (1972), 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375. There the Court held that the criteria to be considered in evaluating identification testimony include:

"

[2] the witness' degree of attention,

[3] the accuracy of the witness' prior description of the criminal,

[4] the level of certainty demonstrated by the [victim] at the [identification] confrontation, and

[5] the length of time between the crime and the identification confrontation." 409 U.S. at 199, 34 L. Ed. 2d at 411, 935 S. Ct. at 382.

Application of these foregoing principles to the case at bar compels reversal of the defendant's conviction. III THE CIRCUMSTANCES OF THE WITNESS IDENTIFICATION

The opportunity the witness had to view the offenders during the commission of the burglary was most inadequate, and the witness' prior activities earlier that morning and during the previous evening merit questioning her degree of attention. The totality of the circumstances surrounding the witness and her observations of the burglary offenders were not conducive to an accurate or reliable identification by the witness.

Lisa Hinchcliff, the only eyewitness to the burglary, testified that she lived in Wilmette, Illinois, with her parents and three sisters. It is apparent that her parents and sisters were out of the city, as were her neighbors, during the post-Christmas and pre-New Year holiday seasons, when her neighbor's home was burglarized. Lisa had just turned 18 years of age on December 6. On Saturday night, December 29 at about 8:30 p.m., Lisa and her girl friend, Judy Sheehan, also age 18, went out to various taverns and night spots, such as Mothers, in the Rush Street area in Chicago, where they danced and Judy drank alcoholic beverages. Lisa testified that Judy drank so much alcohol that she passed out, yet Lisa stated that she did not imbibe any alcohol whatever that evening and morning. This of course was possible. It would seem, however, to be somewhat unusual for two late-teenage young ladies to go out together to taverns in the Rush Street area on a Saturday night, during the Christmas and New Year holiday seasons and one of them becomes so inebriated that she passed out, while the other not drink a single alcoholic beverage during the entire evening and morning hours.

Lisa testified that she and Judy returned to her home in Wilmette from the Rush Street area about 2 a.m. and that Judy went into Lisa's bedroom, where, on Lisa's bed, she passed out from her intoxication.

Lisa knew that her neighbors were out of town, and she noticed that the lights were on in the neighbor's house. Lisa looked through her bedroom window and saw two men in the family room and kitchen of her neighbor's house, about 40 to 50 feet away. Lisa stated that her neighbor's house "was well lit." This too was also possible, but here again, it would seem to be somewhat unusual that nighttime burglars of an unoccupied residence would "well" light up the premises they are burglarizing.

Lisa testified that she said to Judy, "Judy, there's two men next door. What do you think I should do?" Lisa stated that Judy replied, "Do whatever you want to do," that Judy didn't really care. Apparently, Lisa had never seen either man before and she never saw them on the morning in question at a distance any closer than 40 to 50 feet, through the windows of her house and her neighbor's house.

Lisa testified that she was able to observe only the profile of one of the men, and only from his waist up, for a period she described as two minutes. It would appear that two minutes would be an inordinate amount of time for a burglar to stand in an open window in a lighted room of premises that he is burglarizing, even though it perhaps appeared to Lisa to have been that long. Lisa related that one of the men held a television set, while the other attempted to pick up another television set in the family room.

Lisa went to her kitchen, where she reported the burglary to the police by phone, during which time she also observed the burglars in her neighbor's home for a period she described as about a minute. The lights were off in Lisa's house until Judy awakened and went to the bathroom and turned on the bathroom light. At that time one of the burglars turned around and Lisa saw his face. Lisa testified that this man had big sideburns but that he did not have a beard or a mustache. Lisa identified this man at trial as the defendant James Lee Jefferson. During the greater portion of the time that Lisa was observing the men as they moved about in her neighbor's house, she was only able to see the men's profiles. Mostly profile observations of persons burglarizing a residence at 2 o'clock in the morning, through a neighbor's family room and kitchen windows, from a bedroom and kitchen window 40 to 50 feet away by a person who has just returned home from a six-hour escapade in Rush Street bars are far from ideal circumstances for making an accurate or reliable identification.

By reason of these foregoing circumstances, the instant case miserably fails the first and second criteria of Biggers and Slim in evaluating identification testimony, i.e., "

THE WITNESS' PRIOR DESCRIPTION OF THE CRIMINAL WAS AN EXTREMELY INACCURATE DESCRIPTION OF THE DEFENDANT

The case at bar also flunks the third test of Biggers and Slim in evaluating identification testimony, i.e., "the accuracy of the witness' prior description of the criminal." (409 U.S. at 199, 34 L. Ed. 2d at 411, 93 S. Ct. at 382.) Lisa's prior description of the criminal to the police officers shortly after the burglary was an extremely inaccurate description of the defendant.

The burglars fled the premises and the area in what Lisa described as an older model, light color, beat up, General Motors car. The police arrived. Lisa went to the police station, where she gave a description of the burglars to an officer who, based thereon and pursuant to Lisa's directions, drew composite drawings of the faces of the two burglars. These two drawings are included in the record on appeal before us as People's exhibits Nos. 1 and 2.

Lisa was shown seven pictures at the police station from which she selected a picture of the defendant as resembling one of the burglars. The following day she was shown additional pictures at the Evanston police station and she picked the defendant's picture as closely resembling the burglar. Both these pictures are also included in the record on appeal as People's exhibits Nos. 3C and 4. The defendant was arrested on January 2, 1986, at which time his picture was taken. This picture also appears in the record before us, as People's exhibit No. 7. I later herein again refer to these pictures. Lisa picked the defendant out of a lineup on January 3, 1986, as one of the burglars.

A

LISA'S GENERAL DESCRIPTIONS

Lisa originally described both offenders as black, and she also stated that both offenders had black hair and brown eyes. Lisa's ability to see and discern the color of the offenders' eyes under the above-described circumstances is questionable to say the least. More realistically, Lisa's statement that she could see that the color of the burglars' eyes were brown is ludicrous. Even more realistically, Lisa's description of the burglar's eyes as brown was predicated on her stereotype mentality that the offenders had brown eyes because they were black. She testified that she guessed the black offenders had brown eyes.

The description of the burglary offender that Lisa gave the police at the burglary scene, at the police station and to the police artist, which at trial Lisa said was of the defendant James Lee Jefferson, did not remotely or accurately describe him. More importantly, these descriptions were glaringly contrary to the defendant's description. Lisa's prior description of the burglar, whom she identified at trial as the defendant, and her prior description set forth in ...

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